HANUMANTH RAO S KULKARNI vs D/o Post on 31 December 2019

1. Union of India, Represented by Secretary, Department of Post, Dak Bhavan, New Delhi 110 001

2. Chief Post Master General, Karnataka Circle, Bangalore 560 001

3. Post Master General, N.K. Region, Dharwad 580 001

4. Senior Superintendent of Post Offices, Kalburgi Postal Division, Kalburgi 585 101

….Respondents

(By Shri S. Sugumaran, Counsel for Respondent No. 1 to 4)

O R D E R (ORAL) (HON’BLE DR. K.B. SURESH, MEMBER (J)

The matter is for medical reimbursement for treatment undertaken by the wife of the applicant at Kidwai Memorial Institute which is a government grant institution. A total bill of Rs. 3,58,592/- was preferred out of which only Rs. 1,33,836/- was allowed by the respondents on the ground that in the interregnum applicant had retired on 31.05.2016 on the premise that after retirement the said benefits cannot be extended to the dependents.

2. The matter seems to be covered by our order in OA No. 1565/2013 dated 05.08.2014, which we quote: “ORDER (ORAL) SHRI G.SHANTHAPPA, MEMBER (J):

This application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the relief to set aside the impugned order No.E2/8 dated 20.11.2013 (AnnexureA4) issued by the Superintendent of Posts Offices, Udupiby which the applicants reimbursement of Medical Claim has been rejected.

2. We have heard the learned counsel on either side and perused the documents and pleadings placed on record.

3. The brief facts of the case are, the applicant is a retired Postal Assistant. The Ministryof Health and Family Welfare vide OM dated 5.6.1998 extended the benefit of CS (MA) Rules, 1944 to the Central Governmentpensioners residing in non CGHS areas as recommended by the 5th Central Pay Commission. On 19.9.2013 applicant suffered some chest pain. He got admitted at Kasturba Hospital, Manipal. Heart surgery was undergone for which he had incurred medical expenses to the extent of Rs. 62081/-. He submitted his medical claim for reimbursement on 5.10.2013. However, Superintendent of Post Offices,Udupi rejected his claim on the ground that the pensioners are not entitled for reimbursement of medical expenses. Hence he has field the present OA impugning the order dated 20.11.2013 (Annexure.A4).

4. Respondents have filed reply statement and opposed the relief of the applicant in the OA.

5. When the application came up for hearing , the learnedcounsel for the applicant submits that this OA is covered by the orders of this Tribunal in OA No.852/2013. That OA was disposed of with the following direction:

“5. In the present case the applicant is pensioner and he is staying other than CGHS area, he is not covered under CGHS for grant of medical reimbursement. Accordingly the judgment of Honble High Court of Karnataka and O.M. at Annexure.A.4 dated 5.6.1998 issued by the Ministry of Health and Family Welfare regarding claim of medical reimbursement under CS(MA) Rules for those residing in non-CGHS area are applicable.

6. The respondents have no justified while rejecting the request of the applicant. Accordingly, impugned order is quashed. The respondents are directed to consider the claim of the applicant for reimbursement of medical expenses in pursuance of his representation dated 17.7.2013 applying the OM dated 5.6.1998 at Annexure.A4 withina period of three months from the date of receipt of copy of this order.”

6. In view of the aforesaid order in OA 852/2013, the applicant is directed to submit his medical claim in respect of medical bill dated 5.10.2013 before the respondents withina period of 15 days from the date of receipt of copy of this order. The respondents are directed to consider the claim of the applicant and sanction the medical claim within a period of one month from the date of receipt of the medical claim from the applicant.

7. With the above direction, OA is allowed. No order as to costs.

Sd/-

Sd/-

(P.K.Pradhan)

(G.Shanthappa) Administrative Member

Judicial Member”

3. This is also covered by our order in OA No. 469/2013 dated 12.03.2014, which we quote: “ORDER (ORAL)

Heard. The matter relates to reimbursement of medical expenses to a retired official. The matter is covered by the judgement of the Hon'ble Apex Court in SLP No.10659/2005 and connected matters and following this and several cases heard together in WP.No.18210/2005 and other connected cases, which had been filed in challenge against the Tribunal's order, holding that the retired pensioner is not entitled to receive reimbursement of medical bills, the High Court set aside the

order of the Tribunal and held that following the Hon'ble Apex Court judgement that the benefits are available to retired pensioners also.

2. The reply of the respondents in para 4 canvases a view that decisions of various High Courts in the matter is not agreeable to them, since court orders are case specific and cannot be universally applied. This objection is not a valid contention. The ratio of the various judgements are that medical reimbursement is available to retired persons also. It is thus universally applicable.

3. The respondents' Counsel now says that there are some Supreme Court judgements also which says otherwise. But till now, no such Supreme Court judgements had been placed before me. The effect of the Supreme Court judgement produced seems to be that, only the persons who have filed the case, can get the merit in it. But then, this is in relation to judgement which are in the nature of personal relief alone. But the question whether pensioners are entitled to medical reimbursement, is judgement in rem and not in persona. Therefore, it is only to be universally applied.

4. Therefore, the OA is allowed with a clarification that retired employees are also similarly entitled to medical reimbursement of hospital expenses as held by the Hon'ble Apex Court and followed by the High Courts all over India. We bow to their greater wisdom and allow the OA. The respondents are directed to objectively look into the policy of the respondents and rules and if necessary correct it and allow what ever benefit which are available to the applicant within 2 months next.

5. Learned Counsel for the respondents relies on para 5, which states that, rules relating to retired pensioners will be different. It cannot be so, as an artificial classification cannot be created in relation to retired employees viz-a-viz serving employees for grant of hospital benefits. By virtue of they being Government employees at one point of time and the state having had the benefit of their service, they are entitled to be considered equitably with serving employees at least in matters relating to right to life and livelihood.

6. The only question is, that after service is terminated on superannuation, they have become entitled to only pension and not salary. But then, that is by virtue of they being not further available to the Government for active participation in governance. But for receiving medical expenses, this will not come in the way and no artificial classification can be created between serving employees and retired employees. On this ground OA allowed to this limited extent.

7. Learned Counsel for the respondents submits that RA has been filed against the decision of the Hon'ble Apex Court rendered in relation to the matter in 2005. At this point in 2014, we need not worry about the said

RA, if it is pending. If the matter ends in reversal then the Hon'ble Apex Court had held repeatedly that, even that will be prospective effect.

8. Learned Counsel for the respondents raised an issue which would have some interest. He asked that what will be the effect then, if the Hon'ble Supreme Court reverses the order. If the Supreme Court holds that retired employees have been treated as special classificatory group and not to be allowed medical reimbursement, the answer to this is very simple. That order will have only prospective effect as held by hundreds of Supreme Court judgements. If such an order had been passed yesterday, it will have the effect of per incurium against the order of this Court. But if it is passed tomorrow, it will not have any effect, as principle of per incurium will not be applicable.

9. Therefore, it is hereby declared that going by the Hon'ble Apex Court order and followed by orders of Hon'ble High Court of Karnataka and other High Courts, that the applicant as a retired employee, is entitled to medical reimbursement of hospital bills.

10. OA allowed to the limited extent. No order as to costs.

Sd/-

(Dr. K.B. Suresh)

Member (J)”

4. It is also covered by the order of the Hon’ble High Court of Karnataka in Writ Petition Nos. 18210/2005 along with other cases dated 13.08.2012, which we quote: “ORDER

These Writ Petitions challenge the order passed by the Central Administrative Tribunal, Bangalore Bench in O.A. No. 219/05 and other connected Applications.

2. The short question that arises for consideration of this court is that whether the Writ Petitioners who are retired employees of the Union of India are entitled for reimbursement of medical charges.

3. So far as this point is concerned, it is squarely covered by the Judgment of the Hon. Apex Court in S.L.P. No. 10659/05 and other connected petitions wherein the Special Leave Petitions filed by the Union of India has been dismissed confirming the orders of Hon. High Court wherein the High Courts had granted relief to the retired pensioners.

4. In view of the same, we have to allow these petitions and set aside the order of the Central Administrative Tribunal, Bangalore Bench, holding that the Writ Petitioners are entitled for medical reimbursements.

5. Accordingly, these Writ Petitions are allowed.”

5. Therefore, the matter is covered and the retired employees are also pari materia eligible to receive benefits along with the serving employees. There will be a mandate to the respondents to pay the balance amount to the applicant within two weeks without interest and thereafter interest at the rate of 15% as held by the Hon’ble High Court in other sets of cases.

6. The OA is therefore allowed. No order as to costs.

(C.V. SANKAR)

(DR.K.B.SURESH)

MEMBER (A)

MEMBER (J)

/ksk/

Annexures referred to by the applicant in OA No. 170/00258/2019 Annexure A1 Copy of the pension payment order Annexure A2 Copy of the Certificate B along with relevant medical bills Annexure A3 Copy of the SSPO letter dated 30.07.2018 Annexure A4 Copy of the representation dated 20.09.2018 Annexure A5 Copy of the SSPO letter dated 26.12.2018 Annexure A6 Copy of the OM dated 19.11.1999 Annexure A7 Copy of the extract of Swamy’s Medical Attendance Rules G.I., Department of Posts letter dated 22.07.1992

Annexures referred in reply statement Annexure R1 Copy of the extract of relevant portions of CS (MA) Rules, 1944

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